‘Alabama Civil Rights and Civil Liberties Review’ Blog on the Irony of Speech Codes

November 26, 2013

Last week on the Alabama Civil Rights and Civil Liberties Law Review blog, William Derek Green wrote to review trends in universities’ speech codes and to explain the moral and practical reasons why hate-speech laws are not the answer to intolerance and offensive language.

In his post, Green cites FIRE’s annual speech code report, Spotlight on Speech Codes, in noting that “over 95% of universities enforce restrictions on speech.” He commends universities for their goal of eliminating discrimination but shares Jonathan Rauch’s compelling ideas about why that goal is better served by forcing proponents of hate to defend their ideas publicly. Green summarizes an analysis from Rauch’s recent essay for Reason entitled “Kindly Inquisitors, Revisited” and adapted from the new afterword for the second edition of his book Kindly Inquisitors:

Rauch believes that those who would legally restrict hurtful or discriminatory speech “mistake the cart for the horse,” because hate-speech laws are, invariably, not the cause of increased societal tolerance for the protected group, but rather the effect.

Homosexuals in the 1960’s, Rauch writes, were subject to ubiquitous hatred from every corner of American society. But just fifty years later, despite the absence of any sort of hate-speech law designed to protect them, American homosexual rights enjoy firm majoritarian support. So what changed? Quite simply, homosexuals began to talk, out loud, in the media, and to anyone who would listen; often to those who wouldn’t. Rauch points to Frank Kameny, a World War II veteran who, in 1957, was fired from the U.S. Army Map Service for being gay. Unlike most, who would merely stand down and suffer, Kameny fought back. He vigorously demanded that the U.S. Civil Service Commission reinstate him, filed a Supreme Court brief, and led the first gay rights demonstrations, in front of the White House, no less. Momentum built, more and more homosexuals refused to be marginalized, and eventually American society changed. “If the pervasiveness of bigotry was supposed to silence them, as hate-speech allegedly does, Frank Kameny and all those who followed his example “missed the memo.”

In the unthinkable event that hate-speech laws had been passed in the gay-unfriendly America of the 1960’s, they would only have hampered the efforts of people like Frank Kameny. “It would have given the illusion that the job was finished when, in fact, the job was only beginning.  It would have condescended to a people fighting for respect.”

Green also quotes the words of Michigan Supreme Court Justice Thomas Cooley, who wrote in 1868 that when speech “exceed[s] all the proper bounds of moderation, the consolation must be that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.”

Check out the rest of Green’s post, which is well worth reading in full, on the Alabama Civil Rights and Civil Liberties Law Review blog.

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